Court To Weigh Random Drug Tests of Students

The U.S. Supreme Court agreed last week to decide whether it is
constitutional for school districts to randomly test student-athletes
for drug use.

The Justices on Nov. 26 accepted an appeal from an Oregon district
that adopted a random-testing program in 1989 after it perceived an
increase in illegal-drug use among some athletes.

The case of Vernonia School District v. Acton (Case No.
94-590) marks the first time the High Court has examined the issue of
drug testing within the context of public education. The Court has
upheld random drug testing of employees whose jobs affect public
safety, such as train engineers and federal drug agents.

The U.S. Court of Appeals for the Ninth Circuit, based in San
Francisco, struck down the Vernonia, Ore., district's program last May,
ruling that it violates students' Fourth Amendment right to be free
from unreasonable searches. (See Education Week, 05/18/94.)

"Children do not have to surrender their right to privacy in order
to secure their right to participate in athletics," said the unanimous
opinion by U.S. Circuit Judge Ferdinand F. Fernandez for the
three-judge appellate panel.

The threat of lawsuits and the costs associated with drug-testing
programs have limited their appeal, legal experts say. Individual drug
tests cost about $12 to $14 each. Drug testing at Vernonia High School
in the Oregon logging community cost about $4,000 a year, officials
said.

Nonetheless, the question of whether public institutions may require
drug testing of student-athletes has been percolating in the courts for
several years.

The Supreme Court last spring let stand a ruling by the Colorado
Supreme Court that invalidated a random-drug-testing program for
athletes at the University of Colorado. (See Education Week,
05/11/94.)

In 1988, the U.S. Court of Appeals for the Seventh Circuit, based in
Chicago, upheld a drug-testing program adopted by an Indiana school
district.

In his opinion last May, Judge Fernandez of the Ninth Circuit said
the Seventh Circuit's ruling in Schaill v. Tippecanoe County School
Corporation "unduly minimized the privacy interests of students."

The conflicting rulings may have led the Supreme Court to accept the
Oregon case to resolve the issue, experts said.

The 'Drug Cartel'

Vernonia school officials believed that some student-athletes had
been smoking marijuana and using other drugs when they adopted the
program in 1989. Drugs also were considered a factor in the formation
of rowdy student groups with such names as "Big Elk" and the "Drug
Cartel," according to court documents.

Under the district's policy, all athletes had to provide a urine
sample at the beginning of the season for the sport they played to be
tested for drugs. Later, randomly selected athletes had to provide
samples.

Students who tested positive for drugs could either undergo
counseling and weekly testing or be suspended from athletics for the
current and following seasons.

James Acton, a 7th-grade student who wanted to join the football
team at Washington Grade School, challenged the policy in 1991. His
parents did not sign a consent form for drug testing, and he was
suspended from athletics.

There was no evidence that the boy used drugs. The Actons filed suit
over the policy with legal help from the American Civil Liberties
Union. The a.c.l.u. opposes all "suspicionless" drug testing.

A U.S. District Court judge rejected the family's claims in 1992,
but the Ninth Circuit court reversed that decision. Thomas M. Christ,
the Actons' lawyer, said James took the drug tests under protest so
that he could join the basketball team after the district court ruled
against him. He is now in 10th grade.

"This program turns on its head the presumption of innocence," Mr.
Christ said last week. "What the school is telling its students is that
you are all presumed guilty until you prove yourselves
innocent."

1985 Case Cited

In its appeal to the Supreme Court, the Vernonia district argued
that the case presents the opportunity to address school searches that
lack "individualized suspicion."

The district said its position was supported by the Supreme Court's
1985 decision in New Jersey v. T.L.O. In that case, the Court
held that the Fourth Amendment's prohibition of unreasonable search and
seizure applied to searches conducted by school officials but that the
school setting allowed such officials greater latitude to maintain an
orderly educational environment.

"T.L.O. authorizes a more flexible standard for searches in schools
than for searches in nonschool settings," the Vernonia district states
in its petition to the Court. "This Court should specifically consider
the issue of suspicionless drug testing in schools in light of its
holding in T.L.O."

Other Action

In separate action last week, the High Court:

Allowed a group of homeless parents to proceed with a lawsuit
against the District of Columbia over education services for their
children.

The Justices let stand a ruling by the U.S. Court of Appeals for the
District of Columbia Circuit that individuals may sue to enforce
provisions of the federal Stewart B. McKinney Homeless Assistance Act
of 1987. The High Court rejected the city government's appeal in
District of Columbia v. Lampkin (No. 94-578).

Allowed a lawsuit to proceed against the R.J. Reynolds Tobacco
Company in a California case alleging that its Joe Camel advertising
targets children.

The Justices refused to disturb a California Supreme Court ruling
allowing the tobacco giant to be tried on civil charges that the Joe
Camel ads violate a state consumer-protection law. The appeal was
R.J. Reynolds Tobacco Company v. Mangini (No. 94-571).

Ruled 7 to 2 in U.S. v. X-Citement Video Inc. (No. 93-723)
to uphold a federal child-pornography statute, rejecting arguments
that the law banning interstate distribution of such pornography was
so poorly drafted as to be unconstitutional.

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